Sambasiva Rao, J. - (1.)An interesting point of law is raised in this reference which has been made by the Sessions Judge Khammam by his order dated 24th July, 1973. The facts relevant for purposes of this reference are as follows:
(2.)In all 19 accused have been charged under different heads, viz., under sections 302, 148, 149, I2O-B and other sections. All the accused were absconding after the offence was committed. However, A-6, to A-14, were remanded on 10th November, 1972 and finally a chargesheet was filed on 24th March, 1973 against them. A-1 to A-4, who were absconding surrendered eventually before the Court on 6th June, 1973. On 8th June, 1973, the prosecution filed a petition stating that A-1 to A-4 have also stolen one watch, one gun licence, one car licence and some other articles from the person of the deceased, and prayed that the accused may be remanded to their custody for further investigation into the case. The learned Magistrate dismissed this petition by holding that he has no jurisdiction to remand the accused to Police custody because the period of 15 days as envisaged under Section 167, Criminal Procedure Code, had already expired and, therefore, he was unable to grant the remand as prayed for. A revision was filed by the State and the learned Sessions Judge, by his order stated above, recommended that the order of the Magistrate is liable to be set aside. In doing so, the learned Sessions Judge, relied upon a judgment of this Court in State of Andhra Pradesh v. Gollla Rarmlu1, where Mohd. Mirza, J. had held that even under section 167 (3), Criminal Procedure Code, the Magistrate is empowered to remand the accused to custody after the charge-sheet has been filed. In this reference, Mr. K. Jagannatha Rao the learned advocate appearing on behalf of the respondents-accused, contends that the order of remand should not be accepted. He submits that Section 167, Criminal Procedure Code, applies to a case where a charge-sheet has not been filed and the case is at the stage of investigation and, therefore, the ruling relied upon by the learned Sessions Judge has no application to the instant case, as in the instant case the chargesheet has already been filed on 24th March, 1973, and for some reason or the Other the enquiry was being continuously adjourned. Mr. Jagannadha Rao submits that even if section 344, Criminal Procedure Code is applicable to the instant case, the custody referred to under ection 344 (i) (a), Criminal Procedure Code, means judicial custody and not police custody. He further submits that the Explanation to section 344, Criminal Procedure Code, strictly spea king, does not apply to a case where a charge-sheet has been filed but it applies to a case envisaged under section 167, Criminal Procedure Code. Mr. Harishesha Reddy, the learned Advocate appearing on behalf of the Public Prosecutor, contends that it is section 344, Criminal Procedure Code, which is applicable and the custody referred to under section 344 (i) (A), Criminal Procedure Code, would mean police custody. Of course, neither of the parties was able to place any direct ruling to show that the word 'custody' referred to under section 344 (i) (A), Criminal Procedure Code, means judicial custody or police custody, as the case might be. It is now well settled that section 167, Criminal Procedure Code is applicable only when the accused after being in police custody for 24 hours under section 61, Criminal Procedure Code, is brought before the Magistrate and remand is prayed for by the police auhorities. The accused could be brought either before a Magistrate who has jurisdiction or before a Magistrate who has no jurisdiction to enquire. In either case, the first remand of 15 days could be made by either of the Magistrates having jurisdiction or not having jurisdiction. But if the police seek further remand then the Magistrate who has no jurisdiction to hear the case is bound to send the case to the Magistrate who has jurisdiction to hear the case. Thereafter, the Magistrate to whom the case is sent will have powers to remand the accused for a further period as requested by the police under section 344, Criminal Procedure Code. This is the ratio which one can gather from all the rulings on this as pect of the case. In the instant case, however, the police have already filed the change-sheet on 24th March, 1973. Mr. Jagannadha Rao, contends that when once a charge sheet is filed there is no provision in the Code of Criminal Procedure warranting remand of the accused back to the police custody, because the charge-sheet is filed only after the completion of the investigation and, therefore, the Explanation referred to under section 344, Criminal Procedure Code, should apply only to section 167 and not to section 344, Criminal Procedure Code.
(3.)It is not in dispute that section 344 Criminal Procedure Code, is applicable even before the enquiry is commenced. Obviously enquiry is commenced only after the filing of the charge-sheet and not before. Therefore, when a chargesheet is filed and enquiry is about to commence, for some reason the Court finds that an adjournment should be granted, then section 344 (i) (A), Criminal Procedure Code, provides that in case adjournment is granted the Court "may by a warrant remand the accused if in custody". Mr. Jagannadha Rao contends that these words would mean that every time when the case is adjourned, the presiding officer has to sign the warrant as provided under rule 68 of the Andhra Pradesh Criminal Rules of Practice and therefore, it is only a direction to the Magistrate to remand the accused to jail custody and not to police custody.